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At no time during the inspection for weapons did the agent touch the defendant. Nonconsensual touching of another in most cases is clearly more intrusive of an individual’s personal security than is a request to raise a shirt or to empty pockets. The agent’s request that defendant empty his pockets and lift his shirt was permissible under Terry. Click here for the full text of this decision FACTS:On Dec. 6, 2001, Roberto Alejandro Reyes arrived at the El Expresso Bus Station in Brownsville carrying a blue suitcase. An unidentified companion accompanied Reyes. Both men boarded a bus destined for Dallas. With the consent of the El Expresso Bus Co., U.S. Border Patrol Agent David Morales, a certified dog handler, had his dog search the cargo compartment of the bus boarded by Reyes. Had the search of the compartment proved uneventful, Morales intended to board the bus without the dog and conduct an immigration check of the passengers. During the search of the cargo compartment, the dog alerted to the blue suitcase previously carried by Reyes. Pursuant to Morales’ request that he locate the owner of the blue bag, the man loading bags into the cargo compartment boarded the bus and returned with Reyes’s companion, who claimed ownership and consented to a search of the bag. That search revealed no contraband. However, in response to questioning by Morales, Reyes’ companion admitted that he had smoked marijuana that morning before arriving at the bus station. Morales allowed Reyes’ companion to reboard the bus. During agent Morales’ interaction with Reyes’s companion, the dog did not alert to him. Intending to remove the dog from the area of the bus, Morales walked with the dog in front of the open door of the bus, at which point the dog jumped into the passenger compartment. Morales interpreted the dog’s behavior as indicating that the dog was alerting to the smell of narcotics or to a concealed person in the passenger compartment. Morales asked the bus driver to get the passengers off the bus so that the dog could search the passenger compartment. The bus driver told the passengers “[y]ou need to get off the bus because the immigration official needs to get on to check the bus.” Morales then walked toward the front of the bus and stood with the dog approximately four to five feet from the passenger door of the bus. The bus was on the right side of Morales, and the dog was on his left side. As passengers exited the bus they walked within four to five feet of the dog. After exiting the bus, the passengers were not required to remain in a designated area. The dog did not alert to any of the passengers until Reyes and his companion exited the bus. At that point, the dog alerted to an odor and pulled Morales toward Reyes and his companion, both of whom then entered the bus station. Morales followed the men. Once inside the station, Reyes and his companion began to separate. After the men separated, the dog briefly alerted to Reyes and then walked back and forth between the two men, barking and following them. Morales asked the men to stop and to approach him. After asking Reyes to sit, Morales questioned the companion, who again stated that he had smoked marijuana earlier in the day. Based on his experience and training, Morales was concerned about the presence of weapons, because he knew that weapons often accompany narcotics. In response to a request by Morales, Reyes’s companion emptied his pockets and lifted his shirt. No contraband was found. After completing his search of the companion, Morales asked Reyes to stand. When Morales asked Reyes if he had smoked any marijuana or done any drugs, the companion responded that Reyes had not smoked anything. Morales asked Reyes to empty his pockets and lift his shirt. When Reyes lifted his shirt, Morales saw a bundle taped to Reyes’ back. Reyes then ran and abandoned the bundle before he was apprehended by Morales. Morales retrieved the bundle, which contained cocaine. A grand jury indicted Reyes on one count of knowingly and intentionally conspiring to possess in excess of 500 grams of cocaine with intent to distribute and one count of possessing in excess of 500 grams of cocaine with intent to distribute. Reyes moved to suppress the seized cocaine. Following a hearing on the motion to suppress, the district judge denied the motion. Thereafter, Reyes entered a conditional plea of guilty to possession in excess of 500 grams of cocaine with intent to distribute, reserving his right to appeal the denial of his motion to suppress. Reyes timely appealed his conviction. HOLDING:Affirmed. Considering the totality of the circumstances, including the close confines of the interior of the bus, Morales’ extensive knowledge of the dog and concern for the safety of the passengers, the court does not second-guess the agent’s decision to comply with Border Patrol policy and require the passengers to exit the bus prior to commencing the search of the passenger compartment. The court points out that this conclusion, that it was reasonable under the circumstances to have the passengers exit the bus prior to the canine search of the passenger compartment, does not mean that a canine search of a bus with passengers aboard is never appropriate. The court accepts the testimony of Morales that defendant and his companion were approximately four to five feet away from the dog when they exited the bus and the dog alerted to an odor. Because the dog was not in close proximity to the defendant at the time he alerted, the dog’s sniff was only minimally intrusive. Moreover, there is no evidence that Morales intended to search the passengers exiting the bus or to have the dog sniff them. He testified that he intended “[t]o wait for everybody to get off . . . and then put the dog inside the bus.” Considering that the sniff was unintentional and that the dog was approximately four to five away from the defendant at the time the sniff occurred, the court concludes that the sniff does not constitute a search with the meaning of the Fourth Amendment. The raising of a suspect’s shirt by a law enforcement officer does not violate the boundaries established in Terry v. Ohio, 392 U.S. 1 (1968). Neither does directing a suspect to lift his shirt to permit an inspection for weapons; a request that a suspect lift his shirt is “less intrusive than the patdown frisk sanctioned in Terry.” U.S. v. Baker, 78 F.3d 135 (4th Cir. 1996). At no time during the inspection for weapons did Morales touch the defendant. Nonconsensual touching of another in most cases is clearly more intrusive of an individual’s personal security than is a request to raise a shirt or to empty pockets. Morales’ request that defendant empty his pockets and lift his shirt was permissible under Terry. OPINION:Duplantier, J.; Garza, Dennis and Duplantier, JJ.

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